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Why Trump’s threat to sue the New York Times for libel will not succeed.

by SAMANTHA BARBAS

The New York Times building. Photo by Jason Kuffer. CC BY-SA 2.0 via Flickr.

Last Thursday, following publication of a New York Times story describing Donald Trump’s unwanted sexual touching of two women, Trump and his lawyers threatened to sue the Times for libel. In a letter to Trump’s attorney, the Times defended the story as “newsworthy information about a subject of deep public concern” and told Trump that if he did not agree, it would be happy to meet him in court.

Legal experts agree that there is no merit to Trump’s threatened lawsuit. Trump could never win a libel suit against the Times. He would lose not only because he would have a difficult time proving that the allegations were false, but also because he has no chance of showing “actual malice”—that the Times published the statements with “reckless disregard” of the truth. To show reckless disregard, Trump would have to prove that the Times knew or had strong reason to believe the story was false and published it anyway.

Organic beef and chicken comes from cattle and poultry who have not been fed antibiotics. Photo by Ryan Thompson/U.S. Department of Agriculture. CC BY 2.0 via Wikipedia.

Organic food shoppers have become accustomed to looking for green-and-white “USDA Organic” stickers on the products they buy, but they are not always familiar with the rules and standards that lie behind these labels. For example, many people believe that animals that produce organically-certified meat, eggs, and dairy products live very different lives than those on conventional farms. They would be surprised to learn that the rules dealing with animal welfare are ambiguous. This may be about to change significantly—the U.S. Department of Agriculture (USDA) is currently considering a proposal that would transform the treatment of poultry and livestock on organic farms.

Many would be surprised to learn that, when it comes to organic certification, the rules dealing with animal welfare are ambiguous.

As published in the Federal Register, the proposed rules are wide-ranging. Among other things, they would increase the minimum size of dairy cow pens, require farmers to allow chickens to roam freely on soil and grass, and prohibit certain physical alterations, such as poultry debeaking and the removal of tails from cows and pigs.

The president of the ASPCA, an animal welfare organization, has asserted that the new rules would “make ‘organic’ mean something” by forcing farmers to “deliver on its humane promises.” But not everyone is cheering the proposal. Some farmers have argued that it would drive up the cost of organic foods, increase livestock disease exposure, and add to the risk of foodborne illnesses. There are also concerns that senators from agricultural states might vote to de-fund the new rules, blocking their implementation.

At risk of stating the obvious, now could not be a more pivotal time for conservatism in America. The political party that has long been synonymous with conservative values is about to nominate a presidential candidate who, to many of the most prominent, proud, and prolific adherents to the conservative brand, poses an existential threat. The great American tradition of free speech is also on bold if not squeamish display, as an unprecedented cacophony of schoolyard banter has seemed to replace dignified political discourse as the new normal in presidential contests. Ironically, the frontrunner who has brought such extraordinary color to the mainstream political lexicon and inspired his adversaries to do the same, has recently advocated “opening up” libel laws so they would be less protective of negative reporting on political candidates by major news outlets.

Now could not be a more pivotal time for conservatism in America.

In the not so distant past, conservative standard-bearers like National Review, would likely have agreed with Donald Trump. But earlier this year this fountainhead of conservatism instigated a sort of intellectual coup against the Republicans’ presumptive presidential nominee, boldly pronouncing that it is “Against Trump” on its front cover. It has clearly taken a position on what vision of conservatism it supports, and it is decidedly not the approach promoted by the Republican frontrunner.

Back in the mid-century halcyon days of National Review, its position on one issue was crystal clear: Free speech without restraint was a menace. At the time, conservatism stood for a narrow First Amendment; mainstream conservatives supported a freedom of speech that could be significantly tempered by common sense and morality. As I explore in The Right’s First Amendment, in the early decades of the magazine’s publication—beginning roughly sixty years ago—the overwhelming majority of National Review opinion pieces on the First Amendment advocated increased restrictions on free speech. In other words, if an early edition of the National Review could somehow comment on the future events of 2016, it would not merely condemn the unusually tasteless verbal sparring that has broken out in the Republican primary contest as a moral abomination and a threat to traditional values, it likely would have also questioned the very right of speakers to traffic in such vulgarity, vicious invective and fighting words.

A statue of blind justice in front of a federal United States Courthouse. Photo by Tim Evanson, 2012. CC-BY-SA 2.0 via Wikimedia Commons.

In the vernacular of court culture, defendants are identified by vulgarities: “scum,” “piece of shit,” “bad guys”—even “banana suits” (which refers to the jail jumper that defendants in custody must wear in court). One term predominates among these epithets. That term is “mopes,” used mostly to refer to defendants but sometimes used to describe professionals as well. The meaning inscribed in this term is central to the moral rubric applied to defendants by courtroom professionals.

The meaning inscribed in this term—"mope"—is central to the moral rubric applied to defendants.

Work ethic, competency, and motivation are central elements of court culture. Efficiency and speed of disposition provide daily evidence of the court professional’s work ethic. Not surprisingly, plea bargains rather than trials define this proverbial machine of efficient justice, and judges and prosecutors pride themselves on efficiency. Prosecutors specifically, when surveyed about the qualities and values inspiring “disrespect” in the Office of the State’s Attorney, overwhelmingly reported “laziness” in a fellow prosecutor as the worst quality—even worse than “incompetence.”

“Mope” is shorthand for a person who violates these values. Professionals find it difficult to regard a defendant as anything but a mope. By the professionals’ logic, if someone was motivated, hardworking, and competent, he or she would not be charged with a crime—especially one like dealing drugs, stealing, or other common nonviolent felony infractions that define the court docket. Thus these criminal charges signal not a type of criminal act but a type of racialized being.

As the U.S. Supreme Court prepares to issue dozens of opinions in the homestretch of its current term, the Court’s still vacant seat and the heightened national attention around the country’s political future, spurred by the presidential race, endow the coming weeks with particular significance. The persistence of the eight-member Court created by Justice Antonin Scalia’s death three months ago and the Senate Republicans’ ongoing refusal to act on attempts to fill the seat have prompted widespread speculation as to the nature and the number of 4-4 decisions to be issued in the foreseeable future.

Whole Woman’s Health v. Hellerstedt is the most important abortion-related case to be heard by the Court since the early 1990s.

The Court’s unanimous mid-May decision to send the most recent Affordable Care Act contraception coverage case, Zubik v. Burwell, back to the lower courts without taking a substantive stance on it provides some insight into how a reduced high court functions, issuing rulings with limited immediate impact. It also presents a lens through which to predict the potential outcome of the Court’s other high-profile reproductive rights case, Whole Woman’s Health v. Hellerstedt.

The Court’s treatment thus far of Whole Woman’s Health v. Hellerstedt—a case concerning the constitutionality of Texas’s controversial 2013 abortion regulations—contests the means and ends of the incremental and indirect fight against abortion that has been waged in state legislatures and federal courts for decades. Texas’s laws targeting abortion providers are indicative of the broader trend in how battles over abortion are waged and won today. Whereas clinic-front activism and demonstrations once characterized the debate, today the most important disputes affecting present and future access to abortion are principally taking place out of public view, in state legislatures and courts.

It has been five years to the day since the 2011 Tohoku earthquake shook the coastline of Japan’s Honshu island, leading to the tsunami that killed over 15,000 people. Beyond this real disaster, this tsunami also caused a major accident at the Fukushima nuclear power plant, which displaced hundreds of thousands more. The magnitude 9.0 earthquake and resultant tsunami destroyed offsite and onsite power supply to the Fukushima Daiichi nuclear power station, causing the fuel of three reactors to melt and substantial amounts of radioactive material to be released out of the plant. The environmental and economic consequences of the Fukushima accident were significant. An estimated 200,000 Japanese were forced to relocate from their homes and their return awaits a massive land remediation effort that will take decades to complete.

The environmental and economic consequences of the Fukushima accident were significant.

Not surprisingly, much of the coverage of the incident tends to emphasize the resilience of Japanese society during the emergency and the fact that no individuals were killed immediately by the nuclear accident. The over 15,000 who were killed because the Japanese tsunami protection system did not warn or protect them all too often appear to be forgotten today. But these accounts overemphasize the role of good fortune over good planning and pessimists see the fact that the Fukushima accident did not produce massive fatalities in Japan as “homage to plain dumb luck.” The appropriate perspective on Fukushima must, however, include a basic awareness that the disaster could have easily been much worse in terms of loss of life and economic damage to Japan, and even surrounding countries. Equally, with modestly better advance preparation, none of the Fukushima reactors would have suffered any fuel damage. Due to a lack of preparation, the natural disaster of the 2011 earthquake set off a major man-made accident, caused by human error and institutional shortcomings, and from which we stand to learn many lessons in order to redouble efforts to improve nuclear safety.

Last Wednesday, the U.S. Supreme Court heard Whole Woman's Health v. Hellerstedt, a case concerning the constitutionality of Texas's controversial 2013 abortion regulations. While the case does not stand to overrule Roe v. Wade and make abortion potentially illegal, it does contest the means and ends of the incremental and indirect fight against abortion. It could make abortion functionally inaccessible in large swaths of the country, furthering the disparities in state-by-state access that have been rapidly growing in recent years and encouraging the anti-abortion movement to increase its efforts. For this, it is the most important abortion case to be heard by the Court since the early 1990s—even before Justice Antonin Scalia's recent passing.

It is the most important abortion case to be heard by the Court since the early 1990s—even before Justice Antonin Scalia's recent passing.

Much of the discussion regarding the Texas abortion laws has focused on the clinics that these regulations have, and still could, force to close and the resulting distances that women in parts of the state will have to travel in order to access abortion. These closures are the result of increasing the costs of clinic operation brought on by a class of laws often called Targeted Regulation of Abortion Providers, or TRAP laws, which create physical specifications for clinics as well as staffing and licensing requirements. The 2013 Texas state law at issue in this case mandates that abortion clinics meet surgical center standards and that doctors who perform abortions have admitting privileges at hospitals within 30 miles of the clinic. It also bans abortion at 20 weeks after fertilization.

The Gang Crimes Unit of the State’s Attorney’s Office in Cook County, Chicago was where the most bullish state’s attorneys worked. Many were nicknamed for their ferocity, sounding like their own gang of sorts­—“Dirty Dog” Richardson, “Beast-Man” Miller, William “Billy Club” McManus, to name a few. These were the types of men who comfortably put both feet up on their desk and welcomed you to their office with the soles of their shoes.

Nameless mug shots of a stream of black and Latino defendants acted as wallpaper for their office.

Nameless mug shots of a stream of black and Latino defendants acted as wallpaper for their office—a visual souvenir of convictions and conquests. This wallpaper provided a striking, racialized backdrop to the practice of criminal law and was my first introduction to the criminal courts and criminal justice. Nearly all the prosecutors who built and exhibited this showpiece were white; in contrast, nearly every mug shot in the mural was a person of color. I moved backward several steps so that I could see the entire wall, and then I paced reverently along it, as though I were scanning a memorial of the dead.

After receiving calls from her neighbors, a woman found that her daughter’s picture had been used in an ad for a local ice cream store, without the daughter’s or the mother’s consent. Her daughter had simply “liked” the ice cream store on Facebook. The woman was outraged and embarrassed. People across the country whose photographs had been similarly exploited under Facebook’s Sponsored Stories advertising program sued Facebook.

In the past hundred years, in increasing numbers, Americans have turned to the law to help them defend and control their public images.

In 1948, the Saturday Evening Post ran a critique of cabdrivers in Washington, D.C., that accused them of cheating their customers. A photograph appeared with the article that depicted a woman cabdriver, Muriel Peay, talking to the article’s author on the street. The caption did not name her, and the article did not refer to her. Although the woman had consented to be photographed, she did not know that the picture would be used in an article on cheating cabbies. She was humiliated, and she sued the magazine.

In the early 1940s, Zelma Cason, who was the inspiration for a character in a book by a famous writer, sued the author. The portrayal of Cason was highly complimentary, although in one part of the book the author described her as an “ageless spinster resembling an angry and efficient canary” and noted that she used profanity. Cason was upset, and she sought damages of one hundred thousand dollars.

Angry and insulted, these people could have done any number of things. On seeing her picture in the Saturday Evening Post, Muriel Peay could have gone home and cried. Perhaps she did. The unwilling subjects of the Sponsored Stories program could have boycotted Facebook—perhaps they did, too. But these individuals also chose to sue. In the past hundred years, in increasing numbers, Americans have turned to the law to help them defend and control their public images. The twentieth century saw the creation of a law of public image, and the phenomenon of personal image litigation.

On August 3rd, esteemed Stanford Law Professor John Henry Merryman died at age 95. Merryman lived a long and accomplished life, celebrated by his peers and students; his contributions to comparative law, art law, and property law are internationally recognized and highly venerated.

The staff of Stanford University Press extends our sincerest condolences to the family and friends of Professor Merryman. All of us at Stanford Press have long admired him for his many outstanding contributions to the academic community. He will be truly missed.

Merryman’s excellence in scholarship will live on with his colleagues, his many students over his decades of teaching, and in the past and future readers of his prolific list of books.

All manner of execution methods have been challenged before the Supreme Court, from firing squad to the electric chair, and not once in the court’s history has it ever invalidated any state’s chosen execution procedure. This streak continued in last week's Glossip v. Gross decision in which the Supreme Court ruled (in a contentious 5-4 split) that lethal injection and the three-drug cocktail administered in recent executions meets constitutional standards.

While crafting their opinions Justices drew from sources as diverse as Enlightenment-era philosophy, to pharmacology, to Slate articles.

“Welcome to Groundhog Day,” was the colorful opening of Justice Antonin Scalia’s opinion—likely a reference to the similarities between Glossip and a 2007 déja vu-inducing case, Baze v. Rees, which similarly challenged the constitutionality of lethal injection (also to no avail). The petitioners in Baze—two death row inmates from Kentucky—lost their suit when the Supreme Court (in a less divisive 7-2 decision) sanctioned the three-drug cocktail commonly used in lethal injection: a sedative to render the condemned insensate to pain, a paralytic agent, and finally a drug that induces cardiac arrest.

For several years now, a quiet revolution has been underway in consumer electronics. Gadgets that are a part of our everyday lives have learned to see. Relying on optical devices and software that can detect faces and track body motions, cameras, gaming systems, phones, and other tools have gained access to the mechanisms of visions and recognition that were once considered the unique province of sentient beings.

But some of these technologies have a problem: they have a hard time seeing people of color.

Race is made visible by social practices—a claim that is confirmed, ironically, by the experiences of the blind.

In December 2009 Wanda Zamen and Desi Cryer, two employees at a camping supply store in Waller, Texas, noticed something peculiar about an HP computer at the shop. The computer featured a digital camera that detected and tracked human faces. The system had no problem identifying and following Wanda, who is white, but it could not do the same for Desi, who is black. He demonstrates the glitch in a YouTube video that has been viewed almost 3 million times. “As you can see, the camera is panning to show Wanda’s face. It’s following her around. But as soon as my blackness enters the frame, . . . [the camera] stops,” he says.

Common until the 1950s, in 2004 the Wyoming toad (Bufo baxteri syn. Anaxyrus baxteri) was listed by IUCN’s Red List as Extinct in the Wild. According to IUCN’s “Amphibian Ark,”1,895 of 6,285 amphibian species assessed by the Red List are threatened with extinction, and 3,900 species are in trouble. 165 amphibian species are believed to have already gone extinct, including 39 Extinct in the Wild species that still survive in captivity. Source: Bufo baxteri by USFWS.

While the earth’s homo sapiens populations grow exponentially by the day, scientists have been documenting an opposite trend with many nonhuman species. A 2014 Science article estimates that present rates of extinction “are about 1,000 times the likely background rate of extinction”—that is, 1,000 times greater than rates of extinction we might expect to see resulting from so-called natural causes. Indeed, the global Red List of the International Union for Conservation of Nature and many parallel national lists have been documenting the disappearance of numerous species at astonishing rates. Accordingly, some have named the age we’re living in the “Anthropocene”—the age of Man—to indicate not only the enormous threat that humans currently impose on Earth’s nonhuman populations and ecosystems, but also our responsibility toward these other forms of life and matter.

On the joys of publishing law and society books—plus a few editorial secrets.

by MICHELLE LIPINSKI

It’s that time of year again—time for editors to emerge from their cluttered, manuscript- and proposal-laden cubicles, as law and society scholars simultaneously emerge from their even more cluttered offices. Both groups will have to reorient to the dim lights of conference rooms as they attend the year’s grand soirée in sociolegal research, the Law and Society Association meeting. This year, downtown Seattle will be inundated with some of the best and brightest minds committed to social scientific, interpretive, and historical analyses of law across multiple social contexts. Given the conference’s theme—“Law’s Promise and Law's Pathos in the Global North and Global South”—it’s fitting that the conference will be held in Seattle, home of the 1999 WTO Protests.

As a law and society editor, I don’t want to just publish books. I want to help start a conversation.

It would be easy to claim that Law and Society, and the research currently being produced in the field, is more relevant than ever. I could point to a number of recent events that sorely need (and in some cases have received and been enriched by) the attention of this sector of the academy: police brutality, immigration/migrant issues, marriage equality, workers’ rights, etc. But that would be a false claim: Law and Society has always been vital, even before it had a formal name and an annual conference.

In 2010 an 8.8 magnitude earthquake wracked Chile—the sixth-largest quake in the world since 1900. NASA estimates that the event moved Chile’s capital, Santiago, eleven inches to the West, and even tilted the Earth’s axis by three inches. On the ground, the shocks killed hundreds, displaced millions, and devastated nationwide infrastructure—schools, hospitals, roads, homes, and businesses—across a vast swath of the country’s midsection, paralyzing the country for weeks. Occurring at the twilight of Michelle Bachelet’s presidency, just days before the inauguration of Sebastián Piñera, Chile found itself in the grip of national catastrophe just as the nation’s top political leadership was in a period of transition.

Circumstances were dire, the outlook was bleak, and the barriers to recovery seemed staggering—yet, within six weeks, all of Chile’s schoolchildren had returned to classes; by the end of the year—despite sustaining economic damages equivalent to one-fifth of the country’s total GDP—Chile’s economy was back on track, delivering a strong 6 percent annual growth rate at a time when the world economy was still reeling from the 2008 financial crisis. Chile’s restoration proved so swift and robust that it garnered accolades from the OECD (Organisation for Economic Co-operation and Development) who later that same year extended an invitation to Chile to become a full member of its trade forum.

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